Bills Digest no. 147 2004–05

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

The Bill has a variety of purposes. These are described in
detail in the Main Provisions section of the Digest. However, in
brief, the Bill amends both the Criminal Code Act 1995 and
the Telecommunications (Interception) Act 1979 (the TI
Act). The TI Act amendments include the Government s response to
recommendations of the Sherman review of named person interception
warrants.

protecting the privacy of those who use the Australian
telecommunications system by making it an offence to intercept
communications passing over a telecommunications system, other than
as permitted by the Act

prescribing how interceptions can lawfully occur and what can
be done with the information obtained from lawful
interceptions.(1)

The TI Act prohibits the interception of a communication passing
over a telecommunications system except in specified circumstances.
These circumstances include operating or maintaining a
telecommunications system and pursuant to a warrant. Further,
because of the way that the expression interception of a
communication is defined it is not an offence to listen to or
record calls to certain emergency service numbers or publicly
listed ASIO numbers.

ASIO and certain law enforcement agencies may obtain warrants in
relation to a single, identified telecommunications
service ( telecommunications service warrants ) or any
telecommunications services that are used or likely to be
used by a particular individual ( named person warrants ).
Additionally, ASIO can obtain foreign communications warrants.

Broadly speaking, warrants can be obtained for three purposes.
The first is for national security. The second is for the
collection of foreign intelligence. These warrants are issued by
the Attorney-General and, in some circumstances, by the
Director-General of Security. The third purpose is for law
enforcement. Law enforcement warrants are issued by an eligible
judge (2) or a nominated member of the Administrative
Appeals Tribunal (AAT).(3)

In general terms, warrants for national security purposes can be
issued when the Attorney-General is satisfied that a person is
engaged in activities prejudicial to security and the interception
of telecommunications services used by that person will assist ASIO
to obtain intelligence relevant to security.(4) Warrants
for the collection of foreign intelligence authorise the
interception of communications, including foreign communications,
so that foreign intelligence relating to the Commonwealth s defence
or international affairs can be collected by ASIO.

Law enforcement warrants can only be issued in order to
investigate class 1 and class 2 offences. Class 1 offences include
murder, kidnapping, narcotics offences, terrorism offences and
aiding or conspiring to commit such offences. Class 2 offences
include offences punishable for life or a period of at least 7
years where the offender s conduct involves death or serious
personal injury, drug trafficking, serious fraud, bribery, dealing
in child pornography, people smuggling, money laundering or
cybercrime.

ASIO s Director-General of Security can apply for an
interception warrant for national security or foreign intelligence
purposes.

The following agencies can apply for and obtain interception
warrants for law enforcement purposes:

the Australian Federal Police (AFP)

the Australian Crime Commission (ACC)

an eligible authority of a State or the Northern Territory in
respect of which a Ministerial declaration is in force. As at 30
June 2004, declarations were in force for the Victoria Police, NSW
Crime Commission, NSW Police, Independent Commissions Against
Corruption, South Australia Police, Western Australia Police
Service, the Police Integrity Commission, Western Australian
Anti-Corruption Commission, and the Western Australian Corruption
and Crime Commission.(5)

Other agencies that are eligible authorities under the TI Act
but for whom no Ministerial declaration is in force can obtain
lawfully intercepted information from intercepting agencies when
that information relates to their own investigations. These
agencies are the police services of the Northern Territory,
Queensland and Tasmania, the Queensland Crime and Misconduct
Commission, the Inspector of the Police Integrity Commission, the
Royal Commission into the Western Australian Police Service, and
the Parliamentary Inspector of the Western Australian Corruption
and Crime Commission.

The Director-General of Security can issue an interception
warrant for national security purposes in an emergency in the
circumstances set out in the TI Act. Otherwise, the
Director-General must ask the Attorney-General for a national
security warrant and accompany this request with prescribed
information. For instance, in the case of a request for a
telecommunications service warrant the request must include a
description of the service, the number allotted to the service by a
carrier and indicate why the Director-General considers the warrant
should be issued.

The TI Act also sets out what must accompany an application for
a warrant authorising the collection of foreign intelligence.
Different criteria must be satisfied depending on whether this is a
telecommunications service, named person or foreign communications
warrant for the collection of foreign intelligence.

An application by a law enforcement agency for an interception
warrant must be accompanied by an affidavit containing prescribed
information. Further, before issuing an interception warrant the
eligible judge or AAT member must be satisfied of the matters set
out in the TI Act. There are differences in the matters that must
be made out depending on whether the application is for a
telecommunications service warrant or a named person warrant.
Different criteria also apply depending on whether the offence
being investigated is a class 1 or a class 2 offence. For instance,
before issuing a named person warrant for a class 2 offence
investigation, the judge or AAT member must consider the gravity of
the offence and how much the privacy of any person would be
interfered with as a result of the warrant application being
granted.

Subject to certain exemptions, information lawfully gathered by
a telecommunications intercept cannot be communicated to another
person or given in evidence in legal proceedings. Exceptions
include providing that information as evidence in exempt
proceedings , such as prosecutions for prescribed offences ,
(6)proceedings for confiscation or forfeiture of
property or police disciplinary proceedings. Other exceptions
include disclosure for permitted purposes , such as investigations
into prescribed offences and decisions about whether to institute
relevant proceedings .(7)

There are public reporting requirements for law enforcement
warrants (see below) but no equivalent requirements for
interception warrants issued to ASIO. However, ASIO is required to
report to the Attorney-General and, in some circumstances,
classified information is also provided to the Leader of the
Opposition. If an emergency warrant is issued by the
Director-General of ASIO a copy of the warrant must be provided to
the Attorney-General together with an explanation of why the
Attorney-General would have been justified in issuing the warrant
and a statement that national security was likely to be seriously
prejudiced.

Further, a report must be given to the Attorney-General within
three months after a warrant has expired stating how the warrant
has helped ASIO carry out its functions. Additional information
must be provided in the case of a named person warrant.

As well as reporting requirements under the TI Act, the
Australian Security Intelligence Organisation Act 1979 is
also relevant. It requires ASIO to give the Attorney-General an
annual report on its activities. A copy of this report is also
given to the Leader of the Opposition in the House of
Representatives. Although this report details the number of TI
warrants issued to ASIO, including the number of named person
warrants, this information is classified and is deleted from the
version of the annual report tabled in
Parliament.(8)

The TI Act contains many detailed record keeping and reporting
requirements for law enforcement agencies. These serve as safeguard
and accountability mechanisms. They include the following:

the two Commonwealth agencies the AFP and the ACC must keep
records about law enforcement interceptions and the use of
intercepted information. Additionally, two registers must be kept
by the AFP Commissioner. These are a General Register containing
particulars of all law enforcement warrants. These particulars
include the date of issue and period for which each warrant is in
force, each serious offence the warrant related to, the
telecommunications service intercepted, and the name of the
subject. The Commissioner must also keep a Special Register
containing similar details of expired warrants that do not result
in a prosecution

provision for agency reporting to the Attorney-General. The
Attorney-General must be provided with the General and Special
Registers on a quarterly basis and be given a copy of each warrant
issued to an agency. Further, within three months of a warrant
ceasing to be in force, the Attorney must be given a written report
about the use of information obtained by the interception

the Commonwealth Ombudsman must conduct regular inspections of
AFP and ACC records to ensure that interception activities are
conducted in accordance with the statutory requirements. The
Ombudsman must also report annually to the Attorney-General

State legislation must contain parallel reporting requirements
before the Attorney-General can make a declaration enabling the
relevant eligible authority to intercept telecommunications,
and

agencies must give the Attorney-General information required
for inclusion in the annual report on the TI Act, which is tabled
in Parliament.

Division 2, Part IX of the TI Act lists the information that
must be included in the annual report provided to Parliament on the
TI Act. For instance, it must include the number of warrants
applied for and issued, the number of arrests, prosecutions and
convictions based on intercepted information and the use of judges
and AAT members to issue warrants.

During 2003-04, 76% of law enforcement warrants were issued by
AAT members, 6% by Family Court judges, 2% by Federal Court judges
and 16% by Federal Magistrates.(9)

During 2003-04, 3028 warrants were issued to law enforcement
agencies. This figure represents a decrease of approximately 1% on
the total number of warrants issued during the previous reporting
period .(10) Thirty-one applications were refused or
withdrawn, compared with nine refusals/withdrawals in the previous
reporting year.

Although not a statutory requirement, the 2003-04 annual report
also provides information about named person warrants. In the
2003-04 year, 429 named person warrants were issued and one
application was refused/withdrawn. Twelve hundred and sixty-two
services were intercepted under named person warrants. Fifty-one of
those warrants intercepted one service each; 171 of those warrants
intercepted between 2 and 5 services; 27 warrants intercepted
between 6-10 services and 4 warrants intercepted more than 10
services.(11)

According to the annual report:

2035 arrests were obtained on the basis of information that was
or included lawfully obtained information from intercepts. This
represented an increase of 32% on the previous year s figures.
There were 67 arrests for every 100 warrants issued, compared with
50 arrests for every 100 warrants in the previous year

there were 2658 prosecutions in which information lawfully
obtained from interceptions was given in evidence and 1824
convictions in which lawfully obtained information was given in
evidence. The report records that this is a 27% increase in the
number of prosecutions and a 48% increase in the number of
convictions from the previous year, amounting to 87 prosecutions
and 60 convictions for every 100 warrants issued.

However, these figures do not reveal how many telecommunications
services were intercepted to obtain the arrests and prosecutions or
how the number of services intercepted has grown since the
introduction of named person warrants.

During the 2003-04 year, the Commonwealth Ombudsman conducted
two inspections at the AFP and two at the ACC and reported on those
inspections to the Attorney-General. The details of such reports
are not made public. However, the Ombudsman s annual report
contains a brief statement about its functions under the TI
Act:

The reports concluded that the agencies are
generally complying with the requirements of the TI Act. However,
there are also opportunities to improve the administrative and
compliance systems for both agencies, especially in developing
guidelines and training to assist staff in administering
telecommunications interception warrants.(12)

Several of the amendments proposed by the Bill are the
Government s statutory response to the recommendations of the
Sherman Report the Report of the Review of Named Person
Warrants and Other Matters.(13)

The origins of the Sherman Report can be traced to a
recommendation made by the Senate Legal and Constitutional
Legislation Committee when it inquired into the Telecommunications
(Interception) Legislation Amendment Bill 1999. This Bill, which
became the Telecommunications (Interception) Legislation
Amendment Act 2000 (the 2000 Act) contained a number of
important amendments to the TI Act, particularly the addition of
named person warrants .

Named person warrants allow any telecommunications
services used or likely to be used by a particular
individual to be intercepted. Named person warrants are
significantly more privacy intrusive than telecommunications
warrants, which relate to a single telecommunications
service. They have the potential to impact on greater numbers of
innocent third parties who use the same telecommunications services
as the subject of the warrant.

Prior to the introduction of named person warrants, warrants
could only be issued for a particular telecommunications
service. The TI Act dates from 1979 and, reflecting
telecommunications services of the time, was premised on a new
warrant being required for each telecommunications service
accessed by a particular suspect. Named person warrants were
introduced in response to technological developments which enable
people to choose between and use a variety of services, such as
multiple mobile phones combined with multiple SIM
cards.(14) In these circumstances, requiring a separate
telecommunications service warrant to be obtained for each service
used by a person was considered to be a counter-productive and
unwieldy mechanism by law enforcement agencies and ASIO.

The Senate Committee concluded that the reporting mechanisms
contained in TI Act and proposed in the 1999 Bill would play a
crucial role in ensuring that named person warrants were not
abused. It recommended that the Bill proceed.(15)
However, it also recommended that the Bill provide for a review of
its operations within three years of coming into effect , having
regard to the need for the new warrant, the adequacy of safeguards
and the adequacy of reporting mechanisms.(16)

The Government responded to the Senate Committee report by:

agree[ing] to a review of the operation of the
bill as proposed by the committee. It will take place within three
years of the bill coming into effect, and it will have regard to
the three matters that have just been mentioned.(17)

A former head of the National Crime Authority, Tom Sherman AO,
was asked by the Government to report on the need for named person
warrants, the adequacy of safeguards governing their use, the
adequacy of reporting mechanisms for monitoring the issuing and use
of such warrants, and other matters.

The Report of the Review of Named Person Warrants and Other
Matters was completed in June 2003. Mr Sherman concluded the
regulatory regime generally contains adequate safeguards and
reporting mechanisms. The regime has a strong compliance culture
which is well audited by the inspecting authorities.
(18) Nevertheless, he recommended some relatively small
changes Some of recommendations envisaged statutory changes and
others were procedural or administrative in nature.

The Bill responds to three of Mr Sherman s recommendations:
those relating to civil forfeiture orders, reports by the
Commonwealth Ombudsman and statistical information for named person
warrants. Details are provided in the Main Provisions section of
this Digest. The remainder of Mr Sherman s recommendations and the
Government s responses to them are as follows:

That TI systems operating in each of the
intercepting agencies and the major carriers be the subject of an
independent vulnerability/risk assessment once every five years.
The ICC [Interception Consultative Committee] should develop a
program of assessments and monitor the implementation of the
program.(19)

That intercepting agencies develop consistent
procedures for the authorisation of additional services to be
intercepted under named person warrants and that inspecting
authorities pay particular attention to this area. The procedures
should include the keeping of records of the applications to extend
services (including the grounds of the application), the decision
on the application, and the notification to the carrier (referring
to the original authorising warrant).(20)

The Minister has said that recommendations 1 and 2 are being
addressed by the ICC.(21) The ICC includes senior policy
or managerial representatives of intercepting agencies and is
chaired by the Agency Co-ordinator, a statutory position
established under the Telecommunications Act
1997.(22)

ASIO should publish in the public version of its
Annual Report the total number of TI warrants and named person
warrants applied for, refused and issued in the relevant reporting
year.(25)

Mr Sherman indicated that the Inspector-General of Intelligence
and Security supports the publication of the total number of
national security warrants obtained by ASIO. He pointed out that
New Zealand and Canada both publish such statistics, while
acknowledging that neither the United Kingdom nor the USA does
so.

Mr Sherman also remarked:

I believe that there should be a limited form of
disclosure of the total number of warrants and named person
warrants executed by ASIO, because I have difficulty in accepting
that the mere publication of total numbers of warrants will provide
any meaningful information to ASIO targets to enable them to take
counter measures. The information is simply too general to achieve
such a purpose.

Further, the fact that ASIO conducts TI is
publicly known Finally, in this regard, I am influenced by the fact
that it has never been suggested (nor am I aware of any evidence)
that the publication of such statistics has enabled law enforcement
targets to take countermeasures.(26)

The Government rejected this recommendation. The Minister
commented that a recent report by the Parliamentary Joint Committee
on ASIO, ASIS and DSD did not recommend such a
change.(27) The Government also takes the view that ASIO
discharges its accountability responsibilities by classified
reporting to the Government and the Opposition and that the Sherman
Report raised no new substantive arguments for changing the present
arrangements.(28)

restricted record means a record obtained
by means of an interception, whether or not in contravention of
subsection 7(1), of a communication passing over a
telecommunications system.

The 2000 amendments added the words, other than a copy , to the
definition. As a result, copies of records are now exempt from the
record keeping and destruction requirements of the TI Act.

Mr Sherman considered that at least the copies of recordings and
transcripts or other direct records of intercepted communications
should be controlled in the same manner as original recordings
.(29) He recommended that:

The definition of restricted record which existed
prior to the 2000 amendments to the Interception Act should be
reinstated.(30)

The Government rejected this recommendation because recent
developments in technology, particularly the advent of digital
communications technology, mean that it may be impractical and
inappropriate for the Interception Act to seek to regulate [copies]
.(31)

Part 10.6 was added to the Criminal Code by the Crimes
Legislation Amendment (Telecommunications Offences and Other
Measures) Act (No. 2) 2004.(32) It contains new
telecommunications offences. These offences include operating a
device that hinders the normal operation of a carriage service
,(33) modifying a telecommunications device identifier
,(34) and child pornography material and child abuse
material offences. The Criminal Code provides law enforcement
officers who act in good faith in the course of their duties and
whose conduct is reasonable in the circumstances of performing
their duty with a defence to these and other offences.

At present, the expression law enforcement officer is defined
with reference to the AFP; State, Territory and foreign police
forces; the Australian Crime Commission; the Office of Commonwealth
Director of Public Prosecutions and similar offices established
under State and Territory law.

Item 1 of Schedule 1 expands
the definition of law enforcement officer to encompass officers of
the New South Wales Crime Commission, the Independent Commission
Against Corruption and the WA Corruption and Crime Commission;
staff of the NSW Police Integrity Commission and employees of other
agencies prescribed by regulation.

The reason for these additions to the definition of law
enforcement officer is that, like those who currently fall within
its ambit, these officers may be able to intercept
telecommunications or be required to access or transmit child
pornography or child abuse material in the course of their
duties.

Because they are legislative instruments, any regulations
prescribing agency employees as law enforcement officers must be
tabled in Parliament and are subject to disallowance by either
House.

The amendment effected by item 1 will commence
retrospectively on 1 March 2005. This is the date that the
Crimes Legislation Amendment (Telecommunications Offences and
Other Measures) Act (No. 2) 2004 commenced.

As indicated earlier, subsection 7(1) of TI Act contains a
general prohibition on the interception of communications passing
over a telecommunications system . Exceptions to the statutory
regime are provided in various ways. For instance, some activities
like maintenance activities and interception under a warrant are
listed in section 7 as exceptions to the prohibition. Other
activities are excluded from the ambit of the Act because they fall
outside the definition interception of a communication passing over
a telecommunications system contained in section 6.

At present, subsections 6(2A) and (2B) of the TI Act provide
that listening to or recording communications to prescribed
emergency services numbers operated by the police, a fire
service or an ambulance service does not constitute an interception
for the purposes of the Act. These provisions were inserted into
the TI Act by the Telecommunications Interception Legislation
Amendment Act 2002. Item 1 of
Schedule 2 repeals subsections 6(2A) and (2B).

Items 3 and 4 insert new subsections
7(2) and (3) into the TI Act. The effect of these new
subsections is that the interception of communications made to or
from a declared emergency service facility will be
exempted from the general prohibition on the interception of
telecommunications contained in subsection 7(1) of the Act.

Apart from being moved from section 6 to section 7, the Bill
effects other changes to provisions relating to emergency services.
For instance:

the exemption will apply to emergency service
facilities rather than emergency services numbers
. The numbers currently prescribed for the purposes of the Act are:
000, 106 and 112. However, the Minister s second reading speech
points out that emergency services actually use hundreds, if not
thousands, of numbers (35)

the amendments will capture calls made from as well as
calls made to emergency services. The existing provision
only covers calls made from emergency service numbers

as well as police, fire services and ambulance services, an
emergency service facility will include services for
despatching or referring matters to the police, fire services or
ambulance services. This addition is designed to capture
outsourced services

there is no requirement in the Bill for emergency service
interceptions to occur lawfully in the course of a person s duties.
In contrast, the current exemption in the TI Act applies to a
person lawfully engaged in duties (36)

emergency service facilities will be declared by the
Attorney-General s written instrument. Such instruments will not be
legislative instruments for the purposes of the Legislative
Instruments Act 2003. At present, emergency service numbers
are prescribed by regulation.(37) An important
difference between an instrument that is not a legislative
instrument and a regulation is that the former is not subject to
parliamentary scrutiny. It need not be tabled in Parliament and is
not subject to parliamentary disallowance. The Explanatory
Memorandum explains that the reason a declaration is not a
legislative instrument is:

to ensure that the locations of emergency services
facilities are not publicly available.

These facilities represent critical operational
infrastructure which needs close protection as their loss would
endanger the public for so long as these services were unavailable.
There are few benefits in having the location of these facilities
made public, and any that do exist are far outweighed by the
potential risks.(38)

The amendments relating to emergency services commence on
proclamation or six months after Royal Assent, whichever is earlier
(clause 2). They do not operate retrospectively
and thus might potentially expose some emergency service workers
such as workers who recorded conversations on numbers other than
000, 106 and 112 to penalties under the TI Act.

The Explanatory Memorandum explains that where a
radiocommunications network is connected to a telecommunications
network, the TI Act applies to prohibit the interception of
radiocommunications by the Australian Communications Authority
where they interconnect with fixed line telecommunications.
Part 2 is designed to provide a limited exception
to this prohibition if the interception is incidental to a
statutory spectrum management function.

How the provisions in Part 2 commence depends
on the commencement of section 6 of the Australian
Communications and Media Authority Act
2005.(39)

As stated above, the TI Act enables law enforcement interception
warrants to be granted in relation to what are called class 1 and
class 2 offences.

Class 1 offences include murder, kidnapping, narcotics offences,
terrorism offences and ancillary offences involving aiding or
conspiring to commit such offences. Item 8 means
warrants will also be available to investigate the ancillary
offence of being an accessory after the fact in relation to class 1
offences.

Mr Sherman recommended that the TI Act be amended so that civil
forfeiture proceedings are included in the definition of exempt
proceeding in section 5B of that Act. (40) The purpose
of the recommendation was to enable TI material originally obtained
under a warrant issued for the investigation of a class 1 or class
2 offence to be used in civil based restraining order proceedings
under proceeds of crime legislation.

TI material obtained under a warrant issued for the
investigation of class 1 and class 2 offences can already be used
in conviction-based restraining order proceedings.
However, it cannot be used in civil forfeiture proceeding that is,
proceedings that are not conviction-based and where a
civil standard of proof is used to determine the derivation of the
proceeds of crime.(41)

Item 9 of Schedule 2 does two things:

it implements Mr Sherman s recommendation through its amendment
of section 6K of the TI Act

it also removes the list of Commonwealth, State and Territory
proceeds of crime legislation presently contained in paragraph
6K(c) of the TI Act and instead enables relevant Commonwealth,
State and ACT laws to be prescribed instead by regulation.
Regulations must be tabled in Parliament and may be disallowed by
either House.

Item 9 commences on proclamation or six months
after Royal Assent, whichever is earlier (clause
2).

Perhaps the most important safeguard under the
Interception Act is the inspection role carried out by the
Commonwealth Ombudsman on the ACC and the AFP; by the State
Ombudsman and the South Australian PCA on their respective State
intercepting agencies; and by the IGIS on ASIO.(42)

Inspections are designed to ensure that intercepting agencies
like the AFP and the ACC comply with their record keeping
responsibilities under the TI Act. Mr Sherman recommended that:

All inspecting authorities should include in
their annual reports to Parliament a summary of the TI
inspections conducted in the relevant year together with a summary
of any deficiencies identified as well as any remedial action
taken.(43)

The amendments do not adopt Mr Sherman s recommendation insofar
as reporting the details to Parliament.(44)
Instead, item 10 amends section 84 of the
Principal Act the section that deals with the Ombudsman s annual
report to the Attorney-General on the results of its inspections of
Commonwealth agencies. It will require the Ombudsman to include in
his or her annual report to the Attorney:

a summary of inspections conducted during the year

particulars of any deficiencies that impact on the integrity of
the interception regime, and

particulars of remedial action (if any) taken or proposed to
address the deficiencies.

There is no statutory requirement that either the Ombudsman or
the Attorney convey this information to Parliament.

At present, the TI Act does not require law enforcement agencies
to report publicly the number of named person warrants issued
annually or the number of telecommunications services intercepted
under those warrants.(45)

Mr Sherman commented:

When reporting related only to single service
warrants there was a direct correlation between the number of
warrants issued and the number of services intercepted. This is no
longer the case. One named person warrant may result in the
interception of a significant number of services. This means that
the current statistical reporting provides no indication of the
number of services being intercepted in the Australian community.
Indeed the current statistics may be misleading in this
regard.(46)

Mr Sherman recommended that the TI Act:

be amended to require each law enforcement
intercepting agency to provide to the Minister statistics for each
financial year on the

number of named person warrants applied for,
refused and issued;

the number of named person warrants which involved
the interception of services in the following ranges one service,
2-5 services, 6-10 services and more than 10 services;

the total number of services intercepted under
named person warrants;

and that those statistics be set out in the Annual
Report on the Interception Act tabled in Parliament.

Items 12 and 14 amend section
100 of the TI Act the section dealing with the statistics that must
be included in the Attorney-General s annual report to Parliament.
They will require the report to include aggregate statistics
about:

the number of applications for named person warrants,
statistics about telephone applications, renewal applications and
applications that involved entry onto premises and how many named
person warrants were issued subject to conditions

how many named person warrants involved the interception of a
single telecommunications service, how many involved the
interception of between 2-5 services; 6-10 services and more than
10 services, and

the total number of telecommunications services intercepted by
way of named person warrants.

These figures will also be broken down by each Commonwealth and
State agency.

Item 15 defines an employee of a carrier , an
expression which appears in subsection 5(4) of the TI Act, to
include a person who is engaged by the carrier or whose services
are made available to the carrier . This would include
contractors.

The expression, an employee of a carrier , is an important one
and appears in a number provisions in the TI Act. For instance,
interception warrants do not authorise the interception of
communications passing over a telecommunications system operated by
a carrier unless the interception occurs as the result of action
taken by an employee of the carrier.(47)

This amendment commences on 1 June 1980 the date the TI Act
commenced.

Parliament may wish to consider the following matters during its
deliberations on the Bill:

whether the TI Act or the ASIO Act should be amended to require
the public version of ASIO s annual report to contain the total
number of TI warrants and named person warrants applied for,
refused and issued during each reporting year. Such an amendment
would constitute a statutory implementation of recommendation 5 of
the Sherman report and, to borrow Mr Sherman s words, could be seen
as a modest step towards greater disclosure and accountability
(48)

whether there should be legislative amendment to implement
recommendation 6 of the Sherman report and require the Commonwealth
Ombudsman s annual report to Parliament to contain details of
inspections of the AFP and ACC conducted during the year,
particulars of deficiencies revealed and remedial action taken or
proposed. As indicated earlier in this Digest, the proposed
amendments require the Ombudsman s report to the Minister to
contain these details but are silent about reporting to
Parliament

whether retrospective protection should be given to workers in
emergency facilities who may have listened to or recorded emergency
calls on numbers other than 000, 106 and 112 (see the discussion of
items 3 and 4 in the Main Provisions section of
this Digest).

Parliament may also wish to keep a watching brief on the matters
raised in recommendation 2 of the Sherman report relating to the
development of consistent procedures for the authorisation of
additional services to be intercepted under named person warrants.
Mr Sherman also recommended that inspecting authorities pay
particular attention to this area. The Government has said that
recommendation 2 is being addressed by the Interception
Consultative Committee. Mr Sherman did not recommend that
recommendation 2 should be the subject of legislative amendment but
added:

it may it necessary in relation to record keeping
in order to give the inspecting authorities a clearer role in this
area. Another course might be to consider the need for legislation
in the light of experience, particularly if obstacles emerge to
Ombudsmen carrying out this role.(49)

As Mr Sherman points out, the Committee did not come to a
conclusion but it seems implicit by its omission to do so that it
accepted ASIO s position [ie against publication] on the matter .
Parliamentary Joint Committee on ASIO, ASIS and DSD, A Watching
Brief: the Nature, Scope and Appropriateness of ASIO'S Public
Reporting Activities, September 2000, p. 37:
http://www.aph.gov.au/house/committee/pjcaad/asio/pubrepreport.htm

Minister for Justice and Customs, Second reading speech,
Senate, Parliamentary Debates, 16 March 2005, p. 2. The
Minister s second reading speech refers to original records. This
is an error.

The 2004 Act also repealed the old telecommunications offences
previously contained in the Crimes Act 1914.

Including the Internet and emails.

This identifier enables carriers to correctly identify and
block lost or stolen mobile phones. Offences relating to
telecommunications device identifiers are aimed at those who
attempt to evade mobile phone blocks by altering the
identifier.

Section 6 is the provision that establishes the Australian
Communications and Media Authority. It will commence on
proclamation or on 1 July 2005, whichever occurs earlier.

Sherman, op. cit, p. 46.

ibid.

ibid, p. 23.

ibid, p. 39. Emphasis added.

The Explanatory Memorandum states that the amendments will
require the Ombudsman to include in its annual report to
Parliament a summary of the telecommunications interception
inspections conducted in the relevant year together with a summary
of any deficiencies identified and any remedial action taken , p.
7. This is an error.

Jennifer Norberry
6 May 2005
Bills Digest Service
Information and Research Services

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